Sunday, December 21, 2014

It is a common occurrence for sports leagues to come under
antitrust violations from other sports leagues (see USFL v. NFL, 842 F.2d
1335), sponsors (see American Needle Inc. v. NFL, 560 U.S. 183), and even its
own athletes (see Brady v. NFL).Whatever the case, plaintiffs charge that the sports league in question
is somehow engaged in unfair or noncompetitive practices.The basic test for antitrust violations is to
first identify a specific market, and it is here that the leagues find
themselves exempt. For example, the
National Basketball Association is made up of 30 teams, but it is considered a
single entity in the overall market for professional basketball.This allows the league to escape antitrust
from other leagues.With the players and
athletes, the leagues set up a collective bargaining agreement with the
respected players union which prevents antitrust charges from the players.All this has worked for years with major
professional sports leagues such as the National Football League and Major League
Baseball.However, a recent lawsuit
filed against the Ultimate Fighting Championship (UFC) brings interesting
questions about its labor practices and the rights of the
fighters.

The class action lawsuit, filed by current and former
fighters, allege that the UFC illegally restricts the fighter’s earnings by
preventing them from competing in other mixed martial arts promotions and
commanding a share of the fighter’s likeness fees for video games.When such issues are presented to a league
such as the NFL, the answers can usually be found in the collective bargaining
agreement with the player’s union.The
problem here is that the UFC has no such agreement with any fighter’s union and
instead contracts with the individual fighters. Thus, the question is if the UFC is unfairly
restricting these fighters from competing in other MMA promotions?

This case presents a shaky area for the UFC due to the
absence of a collective bargaining agreement, something the NFL uses to escape
antitrust from its players.The suit was
filed on Tuesday, December 16 of this year so it will be a long while before
any answers appear.Further, though only
three fighters are named in the suit, there is no telling how many more are
currently or will become a part of the action.

Sunday, December 14, 2014

After the death of Michael Brown and Eric Garner, much of the public has questioned what exactly does the First Amendment protect? Are we, as a civilized and democratic society, allowed to record officers in uniform as they make an arrest? As they arrest us? Is it illegal to do so? If an officer asks us to stop recording, should we stop? Should we forfeit our phone and be required to delete the recording?

To put it simply, no. The United States is unique in that it protects free speech in order to prevent suspicious arrests and arbitrary stops. So, what happens if an officer is making an arrest and I want to record it, whether the officer knows it or not? I can. The First Amendment allows us to record officers while they are on duty. Since officers have no expectation of privacy while on duty, wiretap laws are normally inapplicable. Unless a person is interfering with legitimate law enforcement operations, recording an officer is legal. The media has embraced this protection, particularly protestors angered by the lack of indictments of the two police officers who killed unarmed civilians.

Some states like Illinois are attempting to restrict a citizen's ability to record officers while making an arrest, however this bill has yet to pass and is unlikely to be constitutional if it does pass.

Thursday, December 11, 2014

Is the NFL Going Up In Smoke?

According to a recent New York Times article, more than 500 former NFL players are suingthe National Football League for football-related brain damage. Attorney Jason
Luckasevic became enraged with the NFL when his brother’s boss, forensic
pathologist Bennet Omalu, confirmed the connection between football and brain
damage. Talking with and examining former pro players, Omalu determined
patterns of brain injury from autopsy specimens of deceased players. In
addition, there are numerous examples of cognitive and behavioral changes in
former players such as headaches, sleeplessness, chronic traumatic
encephalopathy, early onset Alzheimer’s disease, Parkinsonism, among others.
Omalu received violent backlash when he published his findings in 2005 and
Luckasevic was determined to find a way to support Omalu’s findings—hence, the
lawsuit. The complaint is based on the contention that players knew their bodies would be put in jeopardy when
they signed up to play the game of football, but they were not aware that their
emotional and intellectual well-being would be jeopardized as well. Unfortunately,
the players may not receive the damages they are entitled to should the suit be
barred by the sport’s collective bargaining agreement. First filed in 2011, the
suit is now moving to final settlement, raising many issues and implications to
consider while we wait to see how this all turns out.

Football’s class action suit is
being compared to what happened to the tobacco industry. Far-fetched at first
glance, I think there is real merit to this idea. The tobacco industry thrived
for a while and then once everyone realized, based on sound medical data, what
it meant for one’s health and well-being, the industry virtually died. Similarly,
football is thriving and is easily the most watched sport in America, bringing
in $9 billion just last year. Yet, Omalu’s findings have surfaced its short and
long term dangers. Perhaps football, like the tobacco industry, will fall to
the wayside in favor of safer, less contact heavy sports.

As a result of the medical findings
supporting this lawsuit, we can imagine terrible implications for the future of
football. Professional contracts may include head injury waivers, leading to
fewer athletes to opt into the field. More athletes at all levels may be wary
to play at all—it is not difficult to imagine that parents will be apprehensive
to let their little ones play in the first place, let alone at the collegiate
or professional level. Schools may discontinue their football programs
altogether, especially if they cannot sustain medical experts at their fields
for practices and games. Should football fall from grace, their annual revenue
will be nowhere near the $25 billion Roger Goodell predicts it will be in 2027.
Yet, perhaps the athletes who would have played football will now populate into
other, “less risky” sports like baseball or basketball. We could see a huge
increase in those sports’ popularity and revenue as football’s declines.

There is no way to say if this grim
future of football is or is not likely to become reality. But it is important
to see that one attorney’s will can put a multi-billion dollar franchise in
jeopardy.

Wednesday, November 5, 2014

On May 20, 2014, former
NFL player Richard Dent, along with several other former players, filed a class
action complaint in Northern California District Court against the National Football
League.[1]The
complaint alleged that the NFL “intentionally, recklessly, and negligently
created and maintained a culture of drug misuse, putting profit in place of
players' health.”The former players argued that the NFL
had substituted pain medication for proper health care. Specifically, the
plaintiffs claim that the NFL administered painkillers without prescriptions or
regard to the players’ medical history, risk of potential allergic reactions,
or long-term consequences. Also, the players assert that they were supplied
various painkillers without giving informed consent, and that they were
encouraged to take the painkillers to play through injury. The damages sought
include pecuniary and compensatory damages, as well as costs and attorney fees.
The class is said to include all former NFL players who played between 1969 and
2008.

There
are two key issues in the case. First, the court must determine
whether the NFL intentionally, recklessly or negligently created and maintained
a culture of drug misuse that prioritized profit over players’ health. Initially,
the players will have to show that there was, in fact, a culture of drug misuse
in the NFL between 1969 and 2008. Next, a court must decide whether such a
culture was caused by the action (or inaction) of the NFL, or if it was caused
by a general American culture of drug misuse. Also, if the players voluntarily
accepted the drugs and treatment, this raises issues as to how much fault can be
attributed to the NFL.

The second major issue
is whether the case can actually be brought before the court. Under the NFL’s
collective bargaining agreement (“CBA”), disputes between the NFL and players
(including former players) must be resolved in binding arbitration. If the
court concludes that the CBA applies, then the case will be dismissed. But, if
the players can argue that this type of case falls outside the CBA, they might
be able to avoid dismissal.

The
NFL is currently trying to get the case dismissed
with two main arguments. First, the NFL says that the players union is
responsible for looking out for the players. Accordingly, the union should
address the issue. Second, the NFL claims that the individual clubs, and not
the league, are responsible for the medical care of players.

Only in recent years has
society grown conscious of the long-term health concerns surrounding NFL
players. In the last few years, the NFL has been dealing with a lawsuit against
it concerning a lack of concussion safety protocols that lead to many players
suffering long-term mental health problems. That
concussion lawsuit has only recently settled and now the NFL is facing yet
another major and potentially damaging lawsuit. This painkillers lawsuit seems
to have taken a back seat to the recent media coverage
of players’ off the field incidents. However, if this lawsuit moves forward,
it could lead to even more bad publicity for the NFL and several more years of
costly litigation. If indeed the allegations in this case are true, then the
NFL has a lot to answer for and it could lead to major changes in how game of
football is played.

This
issue invites the question: how similar is too similar?According to 17
U.S.C.A. § 106(2)[1], the owner
of the copyright has the exclusive right to “prepare derivative works” based on
the copyrighted material.In this
case, Toyota allegedly consulted with Gibson guitar employees to ensure an
accurate depiction of the story from the book with the intention to derive
their commercial from Dahl’s story (assuming Dahl’s allegations are true, of
course).

However, there are
billions of people with billions of stories; the chance that someone may have had
a very similar personal experience to another person is at least possible, if
not probable.If one person writes
a book about some occurrence in his or her life and another person writes and performs
a similar play, who gets to tell the story?Telling someone to stifle their own life experiences because
someone beat them to a copyright seems a little too Big Brother, however, we as
a society also have an interest in preventing corporations like Toyota from “selling”
someone else’s moments for profit.

Dahl
seeks damages and profits attributed to the advertisement.He also intends to seek an injunction,
preventing the commercial from airing any longer.Arguably, there will be almost no way to determine what
profits came directly from this commercial as opposed to any number of other
commercials aired by Toyota or by individual car dealerships. Nonetheless, Dahl
seems to have a strong case for recovering damages and obtaining a permanent
injunction based on the striking similarities between the commercial and his story.[2]
Only time, and Nevada’s district court, will tell what will become of the
claim, but it certainly seems that the odds are in Dahl’s favor.

Tuesday, October 14, 2014

Thank you for visiting the Denver Sports & Entertainment Law Journal Blog!

The University of Denver Sports & Entertainment Law Journalwas formed in 2005 as a national legal periodical. The Journal is focused on publishing scholarly articles in both the sports and entertainment industries as they pertain to their respective areas of law. The Journal’s aim is to track recent changes in these fields of law and serve as a resource to practitioners and students alike.This year, the Journal has expanded to also include an online blog for student writing. The Denver SELJ Blogis designed to be a more informal outlet for students to work on their writing while tracking changes in sports and entertainment law. Through this blog, the law student members of the Journal's staff are given the opportunity to express their opinions and cover developing stories as they happen. We invite all law students or others that are interested to comment on these posts and hopefully create meaningful dialogue surrounding issues in sports and entertainment law. We would love to hear from you with any questions, comments, or concerns. This is a new project here at the University of Denver and we would love to see it catch on. Please direct these communications to DenverSELJ@gmail.com. Thanks again for visiting and we hope you enjoy,Jake M. LustigDenver SELJ Blog EditorJ.D. Candidate, 2016jlustig16@law.du.edu

At the heart of this media battle is a contract clause
interpretation case that could either come out very well or very poorly for
Azalea. Public policy considerations could direct a judge to find that it was
not the party’s intent to enter into a clause that would give another
individual rights to distribute such materials, and would modify the term to
express the party’s true intent – ultimately prohibiting release of the
tape. However, if a judge doesn't feel
compelled by public policy considerations, and the contract does indeed say
‘any’ recording with visual images, then Azalea may be without any legal
recourse. It will be interesting to see if Azalea and her legal team smooth out
these tensions before trial or, instead, decide to go forward with litigating
her claims.

Sunday, September 14, 2014

Initially suspending Ray Rice for two days was possibly the worst mistake Roger Goodell made.

After the video from TMZ surfaced that horrifically showed Ray Rice beating his fiancé (now wife) in an elevator, the NFL has been under attack. It is unclear what caused the one-sided fight to ensue, however, the NFL barely punished Rice, giving him a lesser suspension than a footballer player who tests positive for Marijuana (now legalized in the great state of Colorado and Washington) would otherwise receive.

The NFL is attempting to have a new "domestic violence policy" in play. Whether the policy is meant to keep the players in check or prevent further controversy to the NFL, we shall see.